Here’s a headline that caught our eye: “Donating vacation time to new moms is a trendy co-worker baby shower gift.” That’s right, according to Good Morning America, it is becoming more popular for employers to allow their employees to donate their paid time off to their pregnant coworkers to allow them to have a longer maternity leave. Continue reading →

Judge Brett Kavanaugh will likely have his confirmation hearing in the near future. The media has spent many news cycles and think pieces addressing hot-button topics including his views on Roe v. Wade, Obergefell v. Hodges, and investigations into the Executive Branch. These are all important issues, but for the sake of this blog, we care about how he will rule on labor- and employment-related matters. Continue reading →

The dreaded non-compete. The clause that is included in many employment contracts that controls employees’ work behavior once they leave their current employer. To be enforceable, these provisions almost always require a time restriction— the employee cannot engage in their line of work for a set amount of time—and a geographic restriction—the employee cannot engage in their line of work within a certain radius of their former employer. Continue reading →

Effective January 7, 2019, Delaware private employers will need to comply with a new state law requiring 60 days advanced notice to affected employees and government officials of a mass layoff, plant closing or relocation. The new law, known as the Delaware Worker Adjustment and Retraining Notification Act (“Delaware WARN”), mirrors in many respects the federal Worker Adjustment and Retraining Notification Act (WARN). The Delaware WARN, however, differs from the federal WARN Act in six critical ways.

The first critical difference is that the Delaware WARN has a lower “total employee” threshold for its application than the federal WARN Act. Delaware WARN applies to employers who employ 50 or more full-time employees or 50 or more employees who work at least a combined 2,000 hours per week. The federal WARN Act applies only to employers with 100 or more full-time employees, or 100 or more employees who work at least a combined 4,000 hours per week (exclusive of overtime). Thus, Delaware WARN will apply to more employers than the federal WARN Act. Delaware employers with between 50 and 99 employees will need to comply with Delaware WARN even though they are exempt from complying with the federal WARN Act.

Second, Delaware WARN uses a lower threshold for defining what constitutes a “mass layoff” thus triggering the statute’s requirements. The federal WARN Act’s definition of a “mass layoff” requires a layoff at a single site affecting: (1) at least 33% of active full-time employees and at least 50 full-time employees, or (2) 500 full-time employees. Delaware WARN sets a lower threshold for a “mass layoff”, including layoffs at a single site involving any of the following: (1) at least 33% of the employees (including part-time employees); (2) at least 10 full-time employees; or (3) at least 20 employees (including part-time). So, for instance, Delaware WARN notices would be needed if a layoff at a single site involves as few as 10 full-time employees, or 20 employees (including part-time).

Third, the Delaware WARN also uses a lower threshold for defining what constitutes a “plant closing”. The federal WARN Act’s definition of a “plant closing” means the permanent or temporary shutdown of a single site of employment (or one or more facilities or operating units within a site) which results in the layoff of 50 or more full-time employees. The Delaware WARN, however, is triggered when there is a shutdown of a single site of employment (or one or more facilities or operating units within a site) which results in the layoff of 10 or more full-time employees.

Fourth, the Delaware WARN requires that employers give advance notice of a “relocation,” whereas a “relocation” is not an event that triggers notice requirements under the federal WARN Act’s obligations. The term “relocation” is defined under Delaware WARN as the removal of all or substantially all of the industrial or commercial operations of an employer to a different location 50 miles or more away that results in a layoff. Theoretically, an employer who moved their location 50 miles (even within the state) could trigger Delaware WARN if the move resulted in a layoff.

The fifth difference is that the Delaware WARN contains broader notice requirements than federal law. Under both the Delaware and federal WARN Acts, an employer is required to provide the required written notice to affected employees and their unions, the state dislocated worker unit (the Delaware Department of Labor Division of Employment and Training) and the chief elected official of the unit of local government within which a closing or layoff is to occur. The Delaware WARN goes on to require notice to the Delaware Workforce Development Board (established pursuant to the federal Workforce Innovation Opportunity Act) for the locality in which the mass layoff, plant closing or relocation will occur. In the written notice itself, the Delaware WARN also requires, in addition to the notice requirements of the federal WARN, that employers include general information regarding any payouts, severance packages, job relocation opportunities and retirement options that will be offered to the displaced workers, and whether the employer is self-insured for workers’ compensation insurance.

The final difference worth noting concerns enforcement of the statutory requirements. Under the federal WARN Act, actions for alleged noncompliance may be brought in a federal court by affected employees. Delaware WARN grants the Delaware Department of Labor the ability to promulgate rules with “provisions that allow the parties access to administrative hearings for any actions of the Department under this [Act].” Additionally, the Delaware Department of Labor has broad authority to “examine any information of an employer” in connection with any investigation or proceeding under the Act to determine whether a violation occurred.

The new Delaware WARN will impose requirements on employers that are not currently subject to the federal WARN Act, as well as additional requirements for those employers who are subject to the federal law equivalent. The penalties for violations are steep. Employers who fail to give proper notice are liable for up to 60 days back pay and benefits for each affected employee, as well as fines and attorneys’ fees. All Delaware employers contemplating layoffs should consult with their legal counsel whether the Delaware WARN applies to their particular circumstances.

We’ve all heard the saying, “sticks and stones may break my bones, but words will never hurt me.” Well, a few weeks ago employees at the Ohio State University found their words coming back to hurt them and their employer in a big way. Continue reading →

The Third Circuit has updated its decision on transgender bathroom policies, which we discussed previously here. The precedential opinion, which was filed on June 18, was revised on July 26 to take a softer stance on whether the decision to require transgender students to use separate, single-stall bathrooms violates federal law. The same panel that issued the original decision issued the revised decision and denied allowing the case to be reheard with a full court. The attorneys for the students have two weeks to renew their request. The attorneys argue that the first ruling—among other things—conflated gender and sex, and ignored long-standing precedent regarding sexual harassment and bodily privacy. This case is a contentious one, with Circuit Judge Kent A. Jordan, joined by Judges Michael Chagares, Thomas Hardiman, and Stephanos Bibas, writing a strongly worded dissent recommending that the Third Circuit rehear the case en banc, meaning that every judge sitting on the appellate court would be asked to hear and rule on the matter. We will monitor the situation and keep you apprised of any updates to this case.

On July 11, Governor Carney signed a bill that changes Title 14, Chapter 12 of the Delaware Code and updates how educators in Delaware are reprimanded in certain instances. State employees who are involved in discipline of teachers, and teachers themselves, should become familiar with the slight, but important, changes that have gone into effect. Continue reading →